July 02, 2006

Does Libby Get Rove's Testimony?

Jeff, who is much more diligent watching Pacer than I, noted a Judge Walton ruling that probably answers a question I've asked about before. Does Libby get the Rove testimony?

I'm referring back to this post, in which I showed how anxious (and very tricksy--that Ted Wells, he is a tricksy lawyer) Libby's team was to get certain evidence related to Rove.

But Wells persists, claiming they have a right to any materials dealing with Rove.

But
if they have, let's take Mr. Rove, if they have emails and other
documents dealing with Mr. Rove's activities, I have a right to get
that material.

The answer to this question may relate to the timing of Rove's escape from charges (the afternoon of the last hearing on Libby's case). After all, if Fitzgerald can't indict Rove and still prosecute Libby successfully, he may have decided to back off the Rove charges. Or, if Libby would be given information that might discredit Rove (such as a plea bargain) Fitzgerald may have backed off charge to retain the value of Rove's testimony.

Well, way back in early June, Walton issued this order,
which pretty much shoots down most of Libby's discovery requests
relating to State, the NSC, and their collective grandmothers' knowledge of Joe
Wilson. But Walton does throw Libby three teeny little milkbones:

(1) All documents which tend to demonstrate that the defendant was involved in an effort to rebut the accuracy of Ambassador Wilson’s findings concerning his trip to Niger, and thus any documentation of discussions the defendant had concerning Ambassador Joseph Wilson, his trip to Niger, or Valerie Plame Wilson with any news reporters or other government officials that were conducted in an attempt to achieve this objective;

(2) All documents which tend to show that the defendant’s conversations with government officials did or did not occur as alleged in the indictment.

(3) All documents, from any individuals, whether or not they will be called as witnesses in the government’s case-in-chief, that are discoverable under Brady v. Maryland, 373 U.S. 83 (1963).

With a footnote to the last item:

Both parties submitted additional pleadings on the issue of whether production of documents should be limited to government witnesses, or should also include defense witnesses. Although helpful, the Court does not need to reach that issue as it is simply requiring the production of documents relating to the allegations in the indictment that are in the physical possession of the government.

It seems that Walton is attempting to skirt the question of whether Libby gets Rove's testimony or not by defining discovery narrowly to what appears in the indictment.

At one level, that makes the question of whether Libby gets Rove's testimony very clear: he gets Rove's version of the conversation they had on July 11, since that is referenced in the indictment.

On or about July 10 or July 11, 2003, LIBBY spoke to a senior official in the White House (“Official A”) who advised LIBBY of a conversation Official A had earlier that week with columnist Robert Novak in which Wilson’s wife was discussed as a CIA employee involved in Wilson’s trip. LIBBY was advised by Official A that Novak would be writing a story about Wilson’s wife.

But I'm still not sure if Libby's team got what they were after. They're after "emails and other documents dealing with Mr. Rove's activities," which is much more expansive than just this one meeting on July 11. Walton's still refers back to Brady, and Fitzgerald doesn't believe some of the Rove (though he's not mentioning any names) stuff fits under Brady:

MR. FITZGERALD: Not at all. I'm responsible for the government's case
and Brady and turning over my obligations. I am not responsible for
preparing the defense case. And the case law, and Your Honor cited it.
It is material defined by the indictment and the government's
case-in-chief. You just can't say I'm going to call 20 witnesses so
give me everything about them. We then would have effectively open-file
discovery or beyond that and I don't agree with that reading of the law.

Fitzgerald's comment here is almost the same as Walton's save for the fact that Walton seems to suggest Brady includes defense witnesses. Then Walton punts in his footnote: he "is simply requiring the production of documents relating to the allegations in the indictment." Well, is what Fitzgerald has related to the allegations in the indictment, to the July 11 meeting, or does he have something more?

I dunno. Here's an answer Fitzgerald gives to Walton in the May 5 hearing, about what he thinks he should or should not turn over (though, as always, he insists he's not speaking about any particular person).

We would not be turning over a conversation if there was a document
about a conversation with a reporter necessarily as to what they said
to the report. But if there is a document that would be relevant to the
conversation with Mr. Libby such as an email saying I just spoke to
Libby or even a calendar entry saying that they meet with Libby, that
sort of thing was turned over.

Let's pretend this is Rove. Fitzgerald is saying that, if there were a document about Rove's conversations with Cooper or Novak, he wouldn't turn them over. But that he would turn over evidence--whether it's a calendar entry or an email--recording his July 11 meeting with Libby. It doesn't seem like Walton's ruling would change that. Calendar entries and emails would either verify or refute the claim in the indictment that Libby and Rove met and Rove told Libby about his conversation with Novak. Since the indictment doesn't go much further at describing what Rove said about Novak, I don't think Libby could claim the need to see documents relating directly to the Cooper or Novak conversations.

But then, I'm still mystified what Wells is getting after. After all, Fitzgerald has already turned over the Rove-Hadley email, which wouldn't seem necessary under Walton's guidelines. What more is Libby after?

The trick, of course, comes if, in a conversation with Novak, Rove mentioned a prior conversation with Libby. If that verified or refuted the allegations in the indictment--even if they don't relate in the least to the July 11 conversation--Libby clearly gets them.

Comments

even if potatohead knew about Plame on July 15th (date of the conversation?), scooter still lied about 6 other conversations, and those six conversations predate the potatohead conversation

so, even if potatohead mentioned Plame to scooter, scooter still lied about the six proceeding conversations

and are we sure that scooter now wants to prove there WAS a concerted effort to refute Wilson ???

that kinda destroys any claims of lack of motive on scooter's part. If you were involved in an effort to discredit somebody and national security laws were violated in that effort, there would be a big incentive to lie about something like that

I still think scooter is counting on the "incompetent council" appeal, cuz his defense seems to be proving the case

Rove's testimony will dramatically help Scooter if Rove gets on the stand and says, "On July 11, Scoots and I had a conversation in which he told me Tim Russert told him that Plame worked for CIA. At the same conversation, I told him Bob Novak had told me the same thing. Scoots didn't mention old Judy at all." Because that would corroborate his story that Libby claimed to have learned of Plame from Russert, as it would also corroborate his story that he didn't tell Judy.

But I'm suggesting there must be something more Libby's team is after, because the ROve-Libby conversation would have already fit under what Fitz was giving Libby. I suspect this urgency has more to do with the suspicion that Rove had conversations with OTHER People about Libby, or taht Rove later compared notes with Novak and therefore Novak becomes a witness corrborating Rove in refuting Libby.

Imho, Libby will probably be collateral damage in Rove's eventual testimony in open court. Sure, a Rove plea bargain might help Libby in terms of the credibility of Rove's testimony. But Rove's extremely low profile about not being indicted is, well, too low. It's gotta be keeping Libby up at night.

Everything Rove is is defined from the foundation of being a political operative. Unlike Cheney or Libby who have a policy agenda they are fighting for Rove's MO always returns to his own neocon power agenda. I almost see Rove in the coverup role here rather than near the driver's seat. From that standpoint the two agendas may have clashed which may be one reason that Cheney & Libby became so obsessed with Plame and Rove instead just became more focused. Rove's interations with others would, I believe, have reflected his game plan as I find it hard to believe the WHIG was as lockstep as we have assumed, and thus could be damning for Libby. In otherwords, more than one camp at the campground.

And, has anybody considered that Libby was being hung out to dry so that David Addington could join forces with Cheney to silently, and more efficiently, destroy the Constitution by increasing the power of the Presidency?

I don't have time to go digging through hearing transcripts, but I believe the "does Libby get Rove's GJ testimony" was addressed in oral arguments some as well. I'm pretty sure the Judge indicated that he was in wait and see for ruling on that for a bit bc at the time the GJ was still ongoing. I think this may be the same hearing that got ears perked bc the Judge also said that he expected the Rove issue to be cleared up shortly.

The Special Prosecutor had several different arguments for why Libby shouldn't get Rove GJ testimony, but a big one was the "ongoing nature of the investigation" and GJ secrecy.

I've been wondering ever since the Rove announcment - in light of the briefs filed and the oral arguments --- where has Team Libby been with the demand that now that GJ is wrapped as to Rove, they should get the testimony? Granted, that announcment was timed to come the day after a status hearing, but Team Libby didn't even raise it at the status hearing. Nothing along the lines of -- how's that GJ going - when might we know some more to renew our motion in front of you Judge Walton?

I thought that odd and I think it odd that there hasn't been anything filed since. And the July response dates for other discovery have been continued - still, no one mentions re-visiting the matter.

I haven't seen the transcript of the June 12 hearing, and don't trust the newsmedia to have gone back to make sure there was no hint Rove would get his no charge news that day. But the prior hearing, May 5, is where Fitz specifically backs off the claim that he's holding onto Rove's testimony because of an ongoing investigation. He argues, there, that Rove's testimony isn't relevant under Brady. And I think Jeff's right--this ruling is the answer to the debate between Wells and Fitzgerald, whether Fitz has to turn over the Rove stuff. It directly addresses, for example, the question of whether Fitz had to turn over materials even if Rove (or any other figure) would only be called by the defense. So barring any answer from the most recent hearing (where I think it'd be most likely to appear, given the timing), this is the answer we get. Which is still fairly vague, IMO.

In thanks and in return for all the details you've tracked for everyone -- here's something I posted on FDL a couple of weeks ago, in case it helps with your (and Jeff's) understanding of the Rove discovery issue:

This is also from Judge Walton's June 2nd Order in the Libby case, and - at least as I read it - pertains directly to Karl Rove and certain documents related to him which may be discoverable. As you, Jeralyn and Christy and Jane are aware, the Libby defense has been agitating for documents related to Rove to be turned over to them, despite the ongoing government investigation. And this despite the fact that Special Counsel Fitzgerald has made it clear that the government will not be calling Rove as a witness in the Libby trial. [The defense may or may not call Rove.]

Judge Walton held off on ruling specifically regarding Rove, until his June 2nd Order, which actually (as indicated by emptywheel above) pretty much deep-sixed most of the avenues for such Rove-related discovery. However, there is at least one possible avenue of discovery still available to Libby, as Walton ruled here in his June 2nd order (pdf Page 6 of 8):

"Thus, of these seven categories of documents, the only documents that would be material to the preparation of the defense are those which tend to show that the defendant's conversations with government officials did or did not occur as alleged in the indictment." - Judge Walton, 6/2/06

To which sentence there is this Footnote #4 appended:

"The government contends that production of documents of this nature may implicate grand jury secrecy rules. Gov't's Opp'n at 26. This Court is not in the position at this point to determine what documents, if any, are not subject to production pursuant to Fed. Crim. R. 6(e). If the government determines that there exist documents that are covered by Rule 6(e), it is welcome to seek a protective order from this Court pursuant to Rule 16(d)." [Bolding added.]

When I read this footnote, I read this as Judge Walton telling the government that should such a category of discoverable documents exist relating to Karl Rove (or others) which the government needs to keep from the defense at this time, the government should seek a protective order from the Court to do so, and to thereby deal with that contentious issue of discovery.

[Rule 6(e) has to do with permissible and impermissible recording and disclosing of the proceedings of a grand jury; and Rule 16(d) with regulating discovery (allowing, in particular, the submission of an ex parte statement to a judge which, if relief is granted, permits the judge to restrict or delay (or deny) the turnover and inspection of specified items of discovery such as those covered by Rule 6(e).]

So I assume, with regard to Karl Rove, that any discoverable documents pursuant to Walton's June 2nd order are either now quietly being handed over to the defense, or that the government is quietly seeking a protective order from Judge Walton to allow them to delay turning over any such documents until a later date.

P.S. Regarding the June 12 hearing transcript: I believe in the past Jason Leopold obtained a transcript from the court reporter, by sending payment in advance and waiting for it by return mail. Also, obviously, someone can go to the courthouse and pay for a copy in person. But we should acknowledge the fact that with Jason now 'off-duty,' no one else has stepped up to obtain that transcript and to get it on-line. 'Stop the bleeding' at Democratic Underground has been asking people to obtain a copy for him/her to post, so far without success. But I agree - for an informed reader, there may well be some very interesting hints in that transcript (even if the hearing only lasted about 15 minutes).

P.P.S. I find the hint that you so clearly highlighted (from the single sentence in the NYTimes) in the last installment of your Anatomy -- that Bob Novak has testified again SINCE the Libby indictment -- extremely provocative, with regard to developments in the Rove investigation. He and Rove (apparently) had a watertight lie and cover story constructed about their mutual conversation -- UNLESS both of them decided to fess up (in an attempt to avoid a Rove indictment by turning over some more 'held back' truth)... IF in fact Novak has been back again to testify, I think your conclusions with regard to Cheney are closing in tight on the ultimate target. [Does it make sense to think, I wonder, that Fitzgerald would be very UNinclined to offer a typical plea deal to Rove, knowing how deceptive and untrustworthy he is and would be as a prosecution witness? But that, after the trip-wire-avoiding just enough fessing-up game Rove has been playing and putting the prosecution through for years now, that Fitzgerald finally backed Rove into an extremely tight corner, and proceeded to block every possible escape route about six different ways, once and for all? (The 3 1/2 hours of testimony in April, for example; as a perhaps trivial aside - I really thought that Fitzgerald had his 'game face' on that day, judging from the photos as he entered the courthouse. And, of course, Rove was wearing his baby blue tie...) So that in the end, Rove, the alleged "student of history," decided his own place in the history books meant more to him than some twisted NeoCon cult to which Libby was and is indoctrinated, but which Rove only ever used as a means to an end? HIS ends - power and self-interest first, at every turn. Thus: the BIG C cooperation it now seems pretty evident that Rove has been forced into.]

Thanks for that point. Yes, I think you're right. Walton gave Fitzgerald a means to protect certain testimony.

I'm going to try to get the transcript. I don't trust others on this one, on the Rove issue, and the timing is too suspect not to get it.

And yes, the Novak testimony--and his comments about not taking the fifth, are quite provocative. Consider--Rove doesn't want a plea deal because any guilty plea will lose him his security clearance and end his career. But Novak has no such problem. So long as he doesn't have to do jail time (kind of tough for an old fart with a bad temper), he can plea, and offer up some goods.

I actually think Karl started medium-C cooperating last Fall, with his possible admission that Libby was his source. And that some of his hail mary passes--particularly the Levine testimony, which may have given Fitz something to index emails off of--ended up giving Fitz enough new to get Karl deeper in. ANd then, to get out of that, he had to Big-C Cooperate. But that's just gut feel...

On the subject of Libby getting Rove's testimony, I felt that the Court may have imposed immunity on Rove so he would not take the 5th when Fitz cross examined him in the Libby trial, in the event Rove had exculpatory evidence for Libby, that would be self-incriminating.

Because Luskin's announcement came on the heels of Fitz being in Court on the Libby case, in which he was expected to provide Judge Walton with a list of who he would be calling as witnesses. Could Fitz have served Rove with a list of Interrogatories?

I think imposed immunity is something that Luskin
could spin into No Indictment on Plame without showing the letter from Fitz.

Well, I second your gut feel. I can't tell exactly when it started - but push probably came to final shove during or as a result of that April grand jury appearance [and with Rove it would have required serious shoving to get him to come clean - it probably was a gradual process in response to increasing force from Fitzgerald, as you indicate].

It would be great if you manage to obtain the transcript. I was remiss in not crediting Pachacutec of FDL in that regard, as well. He did yeoman's work getting a CIPA transcript from the court reporter in person some months back, and then getting it into pdf format. I believe the latest hearing was transcribed by a female court reporter, and not the male court reporter who did the big May transcript. [David Corn claims the hearing only lasted about 15 minutes so it shouldn't be very expensive to get a copy of it.]

EW
from one of your comments
Walton gave Fitzgerald a means to protect certain testimony.

That is exactly what I have been thinking. The timing of Rove supposedly being cleared in the afternoon following that June 12th hearing, especially after the battle for Rove's testimony in the may 5th hearing, is too much of a coïncidence for me.
I realy would like to read that June 12th transcript.

I don't think Fitz would give ROve imposed immunity and I don't think he needed. There were at least some signs he was Big-C cooperating by that point. If you give him immunity, then he has no legal threat over his head. I think Fitz would much rather have Rove with the threat of perjury over his head than without.

Libby's lawyers also represent some WHIG people, could they be looking for additional mention, in emails etc, of Cheney-Libby actions at the suggestion of these folks (who might have some anti-Wilson involvement themselves)?

Kim
WRT WHIG, when Fitz subpoenaed details from WHIG, he did so starting on July 6 (as far as we know). He subpoenaed Libby's notes going back to the Kristof column in early May. Which suggests he sees Libby's involvement as predating WHIG's.

Though AFAIK, the overlap in lawyers is just between Matalin and Libby. ANd heck, they're practically just different tentacles of the same Cheney-monster.

Walton's order for Fitzgerald to produce those three categories of documents exempts documents subject to Jencks and Giglio, material which, as I understand it, doesn't have to be produced until closer to trial time. And from what I understand, the Jencks Act means that the prosecution does not, as part of normal discovery, have to give the defense the statements - including grand jury testimony and FBI interviews - of prosecution witnesses. But Libby's defense appears to argue that statements from defense witnesses are not covered by Jencks, while Fitzgerald seems to take the position that potential defense witnesses are covered by Jencks. And best as I can see, Walton did not resolve this issue; this Jencks question is not actually answered by his footnote saying that he's skirting the prosecution v. defense witness issue with regard to the production of documents in that order.

The reason I take it this matters is because it seems to leave up in the air whether Libby actually gets Rove's testimony even as to the July 11 conversation. If you buy Fitzgerald's line, Libby doesn't get it. But if you buy Libby's line, he gets it. At the same time, I'm not even sure the answer to this question could potentially determine whether Fitzgerald leaves Rove off the hook now. But it will be interesting to see if Rove turns up as a prosecution witness any time soon.

It is the Jencks (testimony of witnesses) and Giglio (witness impeachment evidence) material that is being held back until a later date, as you indicate. But at least in the May 5 oral argument Ted Wells was hammering on an interpretation of Rule 16 discovery, not on Jencks (as he acknowledges) - and was trying to push the envelope beyond the charges he needs to defend against, in the process. He acknowledges that he is not entitled at this time to Giglio and Jencks material. But it is with regard to his Rule 16 argument that the alleged defense witnesses get pulled into his argument, in an attempt to sway Judge Walton that such solely-witness-related discovery would be material to the preparation of the main defense, beyond the (material to the defense) documents Fitzgerald makes clear he has already turned over. [Were you referencing Jencks arguments made by Libby in his briefs, rather than in the May 5 hearing?] Wells manages to sway Judge Walton enough with his novel Rule 16 argument (in fact Wells seemed to think he had Fitzgerald agreeing with him on this argument going in, for some reason), that Walton asked for the supplemental brief about the case law in case it supported Wells's argument. Walton was clearly expressing doubt about the argument Wells was using to broaden Rule 16, but he gave him a chance to prove otherwise. And in the end, as the main post indicates, Walton decided he didn't need to issue a ruling on that particular tangential Rule 16 interpretation, because he could rule on the merits of the Third Motion to Compel without doing so.

So when it comes to Jencks matters down the road, the argument Wells is using now won't work, seems to me. He was working on Rule 16, and will have to try something else more targeted on Jencks to get defense witness impeaching material turned over (or he may bring this Rule 16 argument back out to try again). In that context, I would say that Fitzgerald would concur that the July 11 conversation is definitely material to Libby's defense under Rule 16, and the only reason to hold off on turning it over now would be Rule 6(e)-related (grand jury secrecy requirements), as my first comment above spells out.

The briefs that followed the May 5 oral argument help clarify things quite a bit (a lot of this no doubt you've reviewed, so excuse any unnecessary repetition). The focus of the briefs was particularly on United States vs. Marshall, which Judge Walton was almost led astray on by Ted Wells during the May 5 hearing (he called a quick recess to review it, and then corrected Wells). However, Judge Walton comes right out and says in the May 5 hearing that the case law he had reviewed the night before seemed to uphold Fitzgerald's position that under Rule 16, information that would impeach defense witnesses is not required to be turned over, if not material to the preparation of the defense against the government's case-in-chief [unless such impeachment information about defense witnesses is both material and exculpatory to the case-in-chief (Brady)].

On May 19, Special Counsel Fitzgerald responded to the Libby case law assertions (and misrepresentations). Here's a key summary quote from that brief:

"However, as demonstrated below, neither Marshall nor any other case relied upon by the defendant supports the position that Rule 16 requires the government to produce documents on the ground that they relate to potential defense witnesses."

and

"More fundamentally, the government has not withheld documents material to the preparation of the defense on the basis that the documents relate to individuals who may [be] called as witnesses by the defense, rather than the government." [I added the bold to indicate the bottom line of Rule 16 discovery.]

And then the brief goes into great detail about the Marshall case. The hair-splitting here is that Libby is trying to interpret Rule 16 to require any document that might constitute a "pitfall" for the defense to be turned over just because the defense has named a particular person as a potential defense witness - and that therefore everything that person touched or saw or said, that is in the possession of the Special Counsel is required to be turned over, despite the document(s) being immaterial to the preparation of the defense against the prosecution's case-in-chief. [The May 19 brief says all this a lot better than I have, obviously...]

And here's a closing zinger from that brief:

"Defendant's arguments make clear that he intends to use the documents he seeks for impeachment, or to re-focus the jury's attention to the conduct of others, rather than his own."

So as I read Judge Walton's June 2nd Order, the Special Counsel's overall position is pretty thoroughly endorsed, as part of Walton's "..the Court must...conclude that the defendant's motion to compel is largely without merit." Not to mention by his Order's statement (on pdf Page 5 of 8) that "Such requests seek documents that are far too attenuated to any issue in this case to fall within the scope of Rule 16(a)(1)(E). Rather, the only documents that would be material to the preparation of the defense are those that were reviewed by either the defendant or potential witnesses." Despite all that, the Judge avoids getting down into the nitty-gritty of the May 19 brief's arguments about Marshall and prosecution vs. defense witness Rule 16 discovery, as that Footnote #8 (on the last page of the June 2nd Order) that you picked up on and which emptywheel has noted in her main post above makes clear. [i.e., Walton denied the majority of Libby's Third Motion to Compel Discovery, without ever needing to rule on this creative Wells argument about defense witnesses as it relates to Rule 16 discovery].

Don't know if this makes it any clearer, or just more muddled for you, Jeff, but there's one take on it.

Well, Fitzgerald has been saying that he has gone beyond the call of duty with regard to Rule 16 discovery, in many places. So that things that are marginally material to the preparation of the defense have also been turned over, though not actually required to be. Thus, I imagine that Libby has received (or will receive, eventually) quite a bit more in the way of documents that relate to interactions with Rove, than just Rove's testimony about their July 11 conversation, whether or not any of it exonerates Libby.

For the most part, though, Fitzgerald would be following the standard 'information material to the preparation of the defense' Rule 16 assessments, as to what needs to be handed over with regard to Rove. That's a pretty broad standard, and has to include some material not actually specified/referenced in the indictment, doesn't it? The 250 pages of emails, as just one example -- Rove must show up in those somewhere, I would think. I believe Libby received all 250 pages, quite promptly, although they lack much significance with regard to his defense, according to a Libby lawyer who spoke before he had seen them.

But as to information related to Rove as a defense witness that is NOT 'information material to the preparation of the Libby defense to the case-in-chief' -- you are correct, according to the rulings by Judge Walton so far. Fitzgerald does not believe that the law requires him to turn over such ("fishing expedition") documents just because they relate to Rove or anyone else the defense may call as a witness. [And I'd say that all indications are that he very much knows whereof he speaks on this point...] Walton basically agreed by ruling in his June 2nd Order that he would require discovery only where the information is material to the preparation of the defense to the main charges being alleged (no matter to whom the information is related - Libby, defense witnesses, or government witnesses), without taking the extra step of ruling on isolated defense witness-related information that does not meet that 'material' standard.

And something that might further clarify for Jeff: A lot of the back and forth and complexities of the May 5 oral argument were part of the process of pinning down exactly what the 'defense to the main charges being alleged' could reasonably be considered to consist of. Ted Wells was shooting for the moon, of course (Joe Wilson's Niger trip, what the findings were, documents from anyone who read the final report, the rationale for the invasion itself, etc., etc., etc.). Now that the judge has a firm handle on how far he is going to let Libby wander from the indictment in putting on his defense, the discovery issues and rulings get a whole lot clearer and easier to pin down.

wow pow wow. Thanks, that helps a lot. But I do still have a couple of questions. I appreciate that most of the wrangling was over the interpretation of Rule 16 discovery. But having looked over all the relevant filings pretty carefully, it strikes me that there is an important, unresolved dispute over the interpretation of Jencks, which might bear directly on whether Libby gets Rove's testimony even on the July 11 conversation. (And the dispute over Jencks is, conceptually, entirely distinct from the dispute over Rule 16, even though it likewise bears on the status of material related to defense witnesses.) Unless I'm mistaken, as far as Fitzergald is concerned, he can hold back Jencks stuff for defense witnesses. Team Libby thinks Jencks only extends to prosecution witnesses, not defense witnesses. Since Rove is, thus far, a potential defense witness, the resolution of that question matters. Now, I may be misunderstanding, or it may have been resolved. Because it certainly looks to me that Walton is specifically seeking to ensure that Fitzgerald turns over stuff related to the Libby-Rove conversation. In any case, it is striking that that appears to be the only Libby conversation referenced in the indictment that involves someone (Rove) Fitzgerald so far does not intend to call as a witness. To try to put it another way, I take it if Fitzgerald now puts Rove on the prosecution witness list, he gets to hold back Rove's testimony about the July 11 conversation as Jencks, right? My point is that Fitzgerald has been arguing that the same thing holds for defense witnesses; or so it seems to me.

One other thing. You say:

unless such impeachment information about defense witnesses is both material and exculpatory to the case-in-chief (Brady)

This raises another question for me, on Brady material - and does Brady cover only impeachment information, or material favorable to the defense more generally? (The answer might obviate my question.) What do you make of the fact that Walton specified that the third prong of the documents he required Fitzgerald to turn over, Brady material, included documents from any individuals, regardless of whether they will be witnesses in the government's case-in-chief? Is that just a standard formulation of Brady - but if so, why does Walton even bother to include something so obvious as a reminder that Fitzgerald has to turn over Brady material? Or is there some special significance to Walton's formulation, most obviously the extension of it to individuals beyond those in the government's case-in-chief?

Brady, and its 'progeny' as they say, covers only evidence material to guilt or punishment that is exculpatory for the defendant or impeaching of a prosecution witness's credibility. Immaterial evidence that is inculpatory/incriminating or so-called neutral evidence is not covered or required to be turned over by Brady. Thus Brady (especially because of its Giglio elaboration re the credibility of government witnesses) can clearly be a minefield with regard to government witnesses of 'ill repute'... Sort of like a 'lemon law' for cars, I suppose. The government has to tell the defense about (and work hard at unearthing) any unsavory/impeaching details regarding their potential witnesses: if they have given false, or contradictory, or inaccurate statements in the past; past criminal histories; any leniency arrangements made or offered; alcohol or drug use; any 'reputation for untruthfulness'; any 'bias toward the defendant', etc. [Rumor and speculation on such points is not covered.]

Judge Walton's statement at the May 5 hearing was underlining the point that credibility issues that might impeach potential defense witnesses are not covered by Brady except where such evidence is both material to guilt or punishment and also exculpatory to the defendant (as opposed to being immaterial but tending to further incriminate him, which is evidence the prosecution may retain). In other words, if there is evidence that is material to the preparation of the defense to the case-in-chief, it is turned over under Rule 16. That may or may not happen to include evidence related to certain defense witnesses, and may or may not be exculpatory. If further incriminating evidence exists that implicates and impeaches certain defense witnesses, but that evidence is NOT material to the preparation of the defense to the case-in-chief (Rule 16), NOR material as to guilt or punishment (Brady) the government does not need to inform the defense of that incriminating evidence. [Perhaps that is what you noticed Fitzgerald focusing on - but thought he was referencing Jencks, not Brady?]

Brady is about ensuring a fair trial (so that the government sees that justice is done, and doesn't focus only on winning the case), rather than being only a discovery mechanism, but it does not "trump" Jencks, apparently -- although Jencks material also covered by Brady may sometimes be required to be turned over pre-trial. A violation under Brady is defined as withholding evidence which is material to guilt or punishment so that "...prejudice to the accused ensues....[and where] the nondisclosure [is] so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict."

As to the Jencks Act:

This discovery comes into play during the trial itself. Every witness (other than the defendant), whether government witness or defense witness, after giving trial testimony is subject to discovery by the party that did not call the witness. When requested, the side that called the witness must turn over previous statements (grand jury testimony, written statement, written record of oral statement, sometimes FBI Form 302) by their witness that relate to their trial testimony. In fact, however, much of such Jencks Act information is actually turned over well before trial in practice, by the government, as Fitzgerald has indicated he will be doing, I believe.

So, yes, according to the Jencks Act, if Rove was to be a prosecution witness, his grand jury testimony relating to his trial testimony could be withheld until after his trial testimony. But I haven't picked up on a Libby/Wells vs. Fitzgerald dispute about the Jencks Act specifically. I think the Jencks Act is pretty cut and dried, and Fitzgerald was telling the judge he planned to be more generous with discovery than it requires, anyway. I'd say Walton may have spelled out his June 2nd Order on the last page the way he did just to try to clarify and define all these confusing and overlapping areas of discovery as much as possible. [Perhaps he thought there was need to segregate and clarify that Brady/Giglio discovery is "material as to guilt or punishment" whereas Rule 16 discovery is "material to the preparation of the defense to the case-in-chief" (and includes the evidence of the case-in-chief).]

Note that, under Rule 16, the main evidence of the government's case-in-chief must also be turned over (even if not 'material to the preparation of the defense' for some reason) - so there may be material relating to that July 11 conversation (in addition to the Rove grand jury testimony) that Libby has already received. Fitzgerald was only holding back (and may still be) the grand jury testimony because of Rove's status as a subject of an ongoing investigation; he made it clear he wouldn't be calling Rove as a witness, and thus the Jencks Act exception to Rule 16 doesn't come into play for the government with regard to Rove's testimony (and I haven't noticed the government arguing that it could hold it back under the Jencks Act because the defense may be calling Rove).

pow wow - Thanks again, and I think I've got it, at least with regard to Jencks. I was basically misreading something Fitzgerald said in his 4-5-06 filing (p. 13) - he was saying he had no obligation at all to turn over prior statements by defense, and much less potential defense, witnesses, or impeachment material; whereas I thought he was saying he had no obligation to turn it over now but could hold it back as Jencks stuff and turn it over later. The upshot is that it seems categorically clear - as it has been clear for a while to everyone but me - that when Walton says Fitzgerald has to turn over

(2) All documents which tend to show that the defendant’s conversations with government officials did or did not occur as alleged in the indictment

he is telling Fitzgerald he's got to turn over all documents relating to the July 11 Libby-Rove conversation - unless Fitzgerald turns around and says Rove is going to be a prosecution witness, in which case he suddenly gets to hold it back as Jencks, for a little while at least.

I still don't think I get what Walton is up to with his (3) - not what he said on May 5, but (3) in his June 2 order, cited in emptywheel's post above, though I think I have a clearer sense of what Brady is about in general. One side question: how is this category:

Immaterial evidence that is inculpatory/incriminating

not an empty set? How could evidence be inculpatory yet immaterial? Sorry for the silly questions.

First let me expand on a couple of the sentences in my last comment, Jeff: Under Brady, evidence material to the question of guilt or mitigation of punishment if NOT EXCULPATORY (but rather incriminating) does not need to be turned over. I stated this correctly to begin with, but then started inferring that incriminating evidence also had to be immaterial (which as you point out, appears to be mutually exclusive); in fact, evidence can be material and incriminating (and it's hard for it to be incriminating if it is not material as to guilt...), and still be withheld. Because, for example, impeaching certain defense witnesses (and destroying their credibility) might only make the government's case stronger - and is therefore not "favorable" to the defense under Brady.

So that lack of clarity led me to write one of the sentences you rightly question (good catch):

"Immaterial evidence that is inculpatory/incriminating..." is highly unlikely, in fact. The evidence would either be material and inculpatory, or immaterial; one or the other. So I should have said:

"Immaterial evidence and/or inculpatory/incriminating evidence and/or so-called neutral evidence is not covered or required to be turned over by Brady."

For clarity, here's that next paragraph rewritten more precisely:

Judge Walton's statement at the May 5 hearing was underlining the point that credibility issues that might impeach potential defense witnesses are not covered by Brady except where such evidence is both material to guilt or punishment and also exculpatory to the defendant (as opposed to being material but tending to further incriminate him, which is evidence the prosecution may retain). In other words, if there is evidence that is material to the preparation of the defense to the case-in-chief, it is turned over under Rule 16. That may or may not happen to include evidence related to certain defense witnesses, and may or may not be exculpatory. If further incriminating evidence exists that implicates and impeaches certain defense witnesses, but that evidence is NOT material to the preparation of the defense to the case-in-chief (Rule 16), nor is it part of the evidence-in-chief (Rule 16), then even if it is material as to guilt or punishment (Brady) the government does not need to inform the defense of that incriminating defense witness impeachment evidence.

Yes, you're right - Fitzgerald on 4/5/06, Page 13 references the same Presser case that Judge Walton spoke about on May 5 [this is the case that requires Brady evidence to be both material and exculpatory]. Rule 16 and Brady would have been behind Fitzgerald's arguments there, not the Jencks Act, as you've figured out. [And remember that although (2) requires the turnover of the July 11 conversation testimony, along with testimony concerning other conversations, Walton's footnote earlier in the Order invites Fitzgerald to seek a protective order to further delay the turnover to the defense, for cause. That's the subject of my first comment in this thread.]

I can understand your puzzlement about Walton's (3) in his June 2nd Order. It does seem that he shouldn't have to re-emphasize the categories of individuals covered by Brady. But he may be highlighting for the benefit of the defense that there is still a category of discovery that could cover defense witnesses, or at least non-government witnesses, in part, perhaps knowing that the defense is after some exculpatory evidence that they have a hint about. But of course, Fitzgerald doesn't need to be reminded that he has to turn any such evidence over in accordance with Brady (although maybe the judge decided to underscore it nevertheless). Also, that footnote #8 doesn't really match up with that category, to my mind. Almost seems as though Walton wanted to get that footnote in, and just threw it on the most likely sentence, so as to acknowledge all the briefing back and forth on the matter.

Obviously, this is all quite a maze, Jeff - and your questions certainly aren't silly ones.